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Articles from April 2013

Last Friday, Suffolk University Law School hosted a day-long seminar on Medical Marijuana: “Navigating the Law and the Science.” With many clients in the liquor and pharmacy industries, it seemed a natural for Wayne, Richard & Hurwitz, and the seminar did not disappoint.

Retired SJC Justice John Greaney moderated two morning sessions, which included discussions of Massachusetts’ new medical marijuana laws, comparisons with similar laws nationwide, and an overview of the latest research on medical and scientific uses for marijuana.

Highlights from later sessions included:

Dr. Lauren Smith, Interim Commissioner of the Massachusetts Department of Public Health, summarizing the regulations which are due to be issued soon;

Speculation concerning how federal officials will respond within the Commonwealth, given that marijuana remains classified as a Schedule 1 controlled substance under the federal Controlled Substances Act; and

Views of representatives of law enforcement and municipal and state regulators from Massachusetts, Rhode Island and Maine.

Our take-away?

One, we were surprised to learn that Question 3 (which legalized medical marijuana in Massachusetts) not only passed with a very solid 63 percent of the vote statewide, but actually received majority support in every locality except two (Lawrence and Mendon, and even there only lost 51 – 49). Supporters claim that full legalization (at the state level, ala Colorado and Washington state) is coming to Massachusetts in 2016.

Two, we were impressed by the list of serious medical conditions for which marijuana has been found useful by patients and sufferers (such as cancer, glaucoma, HIV, AIDS, ALS, Crohn’s Disease, Parkinson’s, MS), though research has been slow to happen in large part due to the difficulty of studying a material that is illegal to possess.

Three, Massachusetts seems intent on proceeding with a legal structure that is non-profit, and “vertically integrated” meaning dispensaries will be the source of their own product. We think the state might be better served to consider the alcoholic beverages regulatory model. This would allow for-profit entities to either manufacture or retail the product, allowing each to specialize at whatever they do best, and retain whatever after-tax profit is generated.

The Massachusetts Alcoholic Beverages Control Commission (ABCC) recently issued a decision in favor of a liquor license applicant in Falmouth.

Murphy’s Package Store (Murphy’s) applied to the Falmouth Board of Selectmen to move from its existing Main Street location to new premises approximately four miles away in West Falmouth. After hearing testimony both in favor and opposed to the move, the Board of Selectmen voted 3 to 2 to deny the application. The issues of traffic and parking at the new location were hot topics at both the Falmouth hearing, and at the subsequent appeal before the ABCC.

The ABCC disapproved of the Board of Selectmen’s denial, and remanded the matter back to the Board with the recommendation that the application be granted. In doing so, the ABCC made statements that may help counter some of the common tactics used by opponents to liquor license transfers.

All cases involving the issuance or transfer of liquor licenses in Massachusetts involve a determination of a public need for the license. However, a licensing board in reaching a decision concerning public need is required to make specific findings that are supported by the record. Regarding Murphy’s, the ABCC stated that the Board of Selectmen’s denial was inadequate as it merely recited a summation of the opponents who testified about parking and traffic. The [ABCC] finds this decision to be a general finding (emphasis added). To distinguish, the ABCC cited the case Exotic Restaurant Concepts and stated that [r]ecitals of testimony do not constitute findings. See Exotic Rests. Concept, Inc. v. Boston Licensing Board, Suffolk Superior Court, C.A. No. 07-3287 (Borenstein, J.). In denying the application for transfer, the Board of Selectmen merely recited the statements of the opponents concerning traffic and parking, and this is insufficient to deny a license transfer. In fact, the record reflected that adequate parking was available and neither the Police Chief nor Fire Chief had any objections to the transfer.

Additionally, the ABCC refused to give any weight to one opponent’s statement that there existed another package store located less than Â½ mile away from the proposed transfer location. The ABCC stated that “[t]his distance between the existing package store and the proposed location of Murphy’s was not verified to the [ABCC], nor was it explained how this distance was calculated or calibrated.”

The ABCC noted that a single liquor store in one area of a town could be considered a monopoly. The ABCC in its decision stated that “the action of the Local Board in denying this application has the effect of continuing in place the monopoly held by the sole § 15 license in this section of the town.”

Based on the ABCC’s Murphy’s decision, liquor license applicants are advised to prepare to substantively counter objections that may be raised by opponents. Common general objections such as traffic, parking, and proximity of other package stores can be countered by a license applicant who builds a strong and detailed record at the hearing.

Wayne, Richard & Hurwitz LLP invites you to join us for a seminar entitled Alcohol, Food & Entertainment Licensing & Liability Update 2013. The seminar will be taking place on Thursday, April 11th from 2:00 to 5:00 p.m. both via Webcast and live at the MCLE Center located at 10 Winter Place in Boston. Howard J. Wayne, founding partner of the firm, will be chairing our esteemed panel. The panel will include:

William Kelley, Esq. General Counsel, Alcoholic Beverages Control Commission

Paul M. Maleck, Esq. Doherty, Wallace, Pillsbury & Murphy P.C.

Paul Mullan, Esq. Commissioner, Worcester License Commission

Nicole Murati Ferrer, Esq. Chairwoman, Licensing Board for the City of Boston

At this seminar, you will hear directly about the licensing process directly from the decision makers and leading practitioners. The law surrounding licensing and liability is always changing; this program will help you and your clients stay current on this challenging area of the law. The conclusion of the program will include an “Ask the Experts” session for attendees to get answers to their licensing questions.

Please click here to register to attend the seminar or click here to sign up for the live Webcast. The panel is looking forward to fielding your questions!